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Sunday, March 22, 2015

Nicknames Can Be Costly


By Tommy Eden

Ali Aboubaker, a black Muslim man of Tunisian origin, worked for Washtenaw County, Michigan when his co-workers after the September 11, 2001 attack begin to playfully call him “terrorist” and “Osama.” They also occasionally interfered with his prayer time and commented on his head covering, claimed his lawsuit.

Then in 2008 Ali was denied an opportunity to interview for a position for which he felt he was very well-qualified and for which a less experienced nonunion applicant was hired. It turned out that he was not allowed to interview because his supervisor placed in his personnel file negative performance evaluations which mentioned that Ali kept a beard and wore a head covering for religious reasons.

In June 2008 Ali filed an EEOC Charge claiming that he was denied the interview promotion opportunity because of his race, nationality and religion. The County then chose to fire him a month later for legitimate grounds.

Ali’s EEOC Charge later transitioned into a federal court compliant in the Eastern District of Michigan. After a seven day jury trial, Ali received a verdict in his favor of 1.2 million dollars in economic and non-economic damages. Ali was able to show at trial that the negative evaluations by a supervisor that had been improperly placed in his personnel file along with nicknames constituted direct evidence of discriminatory animus (state of mind) to serve as evidence of race, nationality and religion discrimination. Ali was also able to show that he was a well qualified candidate who for years had been passed over for other positions in favor of mostly white candidates with similar or less experience.

In a jury trial of a discrimination claim there can be numerous pieces of direct evidence in the form of racial slurs or other derogatory nicknames used to show a racially discriminatory animus which management knew existed but did not stop or take corrective action.

This week a federal district judge looked at all the county had to offer and decided that there had been “presented sufficient evidence to support the jury's finding” and the verdict should stand in favor of Ali. She cited evidence of Ali's education and experience, compared to the individuals the county interviewed, evidence that another candidate who did not meet the minimum requirements was interviewed, and a county policy giving Ali consideration and preference as a union member.

Common Sense Counsel. Loose lips have sunk many a good and well-intentioned employer. Allowing nicknames, slurs of any type, or any form of disrespectful speech to go unchecked is a loaded EEOC charge just waiting for the spark of an adverse employment action. My mom always lived by the words “if you can’t say something nice about someone, just don’t say a thing.”  Remember that, and the $1.2 million Ali was awarded, when you let flaming tongues wag unchecked in your workplace.


Tommy Eden is a partner working out of the Constangy, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com and follow on twitter tommyeden3